Gibson v. Campbell et al

Filing 232

ORDER denying 228 Motion to Stay. ORDERED that the deadline for the filing of any dispositive motion is extended up to and including November 18, 2011 by Magistrate Judge Kristen L. Mix on 10/18/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-00983-WYD-KLM
WELLMAN E. GIBSON,
Plaintiff,
v.
ANNA MARIE CAMPBELL,
C. HOLST, AIC,
SHIRLEY STEINBECK,
MARSHALL GRIFFITH,
LT. STEINBECK, and
DOCTOR AASEN,
Defendants.
_____________________________________________________________________
ORDER DENYING STAY
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Request for Stay of Proceedings
[Docket No. 228; Filed October 5, 2011] (the “Motion”). Pursuant to the Motion, Plaintiff
contends that he needs a 90-day stay of his case, plus a 90-day extension of the deadline
to file dispositive motions, due to surgery on his left arm that occurred on September 26,
2011 [Docket No. 228]. Due to the vague and conclusory nature of the information
provided by Plaintiff, the Court directed Defendants to respond and specifically provide the
Court with the following information: (1) the date of Plaintiff’s surgery; (2) the reason for
Plaintiff’s surgery and his projected recovery time; and (3) whether Defendants oppose the
imposition of a stay [Docket No. 230].
Defendants filed a Response to the Motion on October 6, 2011 [Docket No. 231].
Defendants included an Affidavit of Paula J. Frantz, M.D. and accompanying exhibits with

their Response [Docket No. 231-1]. Dr. Frantz is the Chief Medical Officer for the Colorado
Department of Corrections. Aff., [#231-1] at 1. She attests that Plaintiff “underwent right
carpal tunnel release surgery on April 14, 2011 and left ulnar nerve transposition surgery
on September 26, 2011.” Id. She explains that Plaintiff’s medical records “show that he
is almost fully recovered from the transposition surgery,” and he “was able to move all of
his fingers without any problems and had normal muscle strength in both hands.” Id. at 2.
Notably, the September 26, 2011 surgery affected Plaintiff’s left elbow, and according to
Dr. Frantz, “Plaintiff is right-handed.” Id. at 1-2. Dr. Frantz represents that “there is no
indication from [Plaintiff’s] medical records that he is currently unable to read or write.” Id.
at 2. Defendants therefore oppose Plaintiff’s request for a stay. [#231] at 2.
Plaintiff proceeds pro se in this matter, and as such, the Court is obligated to liberally
construe his filings and treat his requests for relief with a certain level of flexibility. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). However, the Court should not be Plaintiff’s advocate, nor should the Court
“construct a legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74
(10th Cir. 1997) (citing Hall, 935 F.2d at 1110). Furthermore, as the Court has already
informed Plaintiff, he must follow the same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); see also Recommendation, Docket
No. 115 at 7.
Plaintiff initiated this lawsuit on April 21, 2009 [Docket No. 1]. After Plaintiff appealed
an initial order of dismissal issued by the District Court, the case was remanded for further
proceedings by the Tenth Circuit Court of Appeals on October 5, 2009 [Docket No. 33].
Plaintiff submitted an Amended Complaint, the governing pleading, on October 26, 2009
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[Docket No. 37]. On November 20, 2009, the District Court reinstated the case and
assigned it to Chief Judge Daniel and the undersigned [Docket No. 48]. Defendants filed
a motion to dismiss on January 29, 2010 [Docket No. 85]. Plaintiff filed two requests for
extensions of time to file a response to the motion to dismiss [Docket Nos. 87, 91]. During
the pendency of the motion to dismiss, Plaintiff filed his first motion requesting a stay of all
proceedings [Docket No. 105], which the Court denied on April 21, 2010 [Docket No. 108].
The motion to dismiss was denied on August 17, 2010 [Docket No. 116].
Plaintiff filed a second request for a stay of all proceedings on January 3, 2011
[Docket No. 161], which the Court denied on January 14, 2011 [Docket No. 168]. In his
second request, Plaintiff stated he was “sedated for surgery.” Defendants responded to
this second request at the Court’s instruction, and explained that at that time, Plaintiff was
not scheduled to undergo surgery [Docket No. 167]. In the Order Denying Stay, the Court
warned Plaintiff that the filing of any future pleadings which are false or misleading could
result in sanctions, including the dismissal of his case. [#168] at 2-3.
Plaintiff filed a “Reply” to the Order Denying Stay, which the Court construed as a
motion for reconsideration, on January 31, 2011 [Docket No. 172]. On March 30, 2011, the
Court granted the motion for reconsideration and stayed the case until August 1, 2011
[Docket No. 195]. The stay was granted pursuant to Defendants’ representation that
Plaintiff was scheduled to have surgery within the coming weeks after the date of the Order
(March 30, 2011), and that such surgery, on his dominant hand, could require up to twelve
weeks of recovery time. In consideration of the expiration of the stay on August 1, 2011,
the Court reset the deadline for filing any dispositive motion as October 1, 2011. [#195] at
2.
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On July 28, 2011, Plaintiff filed a notice with the Court, in which he requested a
“continuance of stay for 18 months . . . .” Docket No. 206 at 2. The Court denied this
request without prejudice and directed both sides to show cause as to why the Court should
not recommend that the case be administratively closed [Docket No. 208]. Plaintiff
responded to the instruction to show cause on August 8, 2011, indicating that he wished
to “withdraw his request for a stay till Feb. 2013" [sic] [Docket No. 210]. In accordance with
Plaintiff’s request, the Court discharged the obligation on August 9, 2011 [Docket No. 211].
In the Minute Order discharging the obligation to show cause, the Court reminded the
parties that the deadline for filing dispositive motions remained set as October 1, 2011
[#211]. The Court issued an additional reminder regarding this deadline on August 30,
2011 [Docket No. 222].
Plaintiff filed a fourth request (including the request for an extension, but not
including the motion for reconsideration) for a stay of all proceedings on September 20,
2011 [Docket No. 224]. On September 27, 2011, the Court denied this request for a stay
on the basis that Plaintiff failed to articulate good cause for the imposition of a stay [Docket
No. 227].

However, the Court sua sponte extended the deadline for the filing any

dispositive motion up to and including November 1, 2011. One week later, Plaintiff filed the
Motion at issue, which is his fifth request for a stay of all proceedings in this case.
Although Dr. Frantz, through her Affidavit, corroborates Plaintiff’s story that he
recently underwent surgery, Plaintiff’s representations of the alleged resulting hardship are
inaccurate, given the information contained in his medical record and his repeated filing of
motions throughout the history of this case. The information provided by Dr. Frantz reveals
that the recent surgery affected Plaintiff’s left elbow and appears to be fully healed. In any
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event, according to Dr. Frantz, Plaintiff is right-handed and apparently able to read and
write. In light of these facts, Plaintiff’s request for a stay is unwarranted. However, in
consideration of the Court’s obligation to a pro se litigant, the Court will again sua sponte
extend the dispositive motion deadline to one month from the date of this Order, which is
ample time, in the context of this rapidly aging lawsuit, to prepare and submit a dispositive
motion, if Plaintiff so chooses. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Request for Stay of Proceedings [#228]
is DENIED.
IT IS FURTHER ORDERED that the deadline for the filing of any dispositive motion
is extended up to and including November 18, 2011. Absent exceptional cause, the
Court will not grant any further request for extension of time, nor will the Court
entertain any further request for a stay of proceedings. The Court again reminds
Plaintiff of his obligation to ensure that all of his pleadings are entirely truthful and
accurate.

Failure to do so will result in imposition of sanctions, including a

recommendation that the case be dismissed.
Dated: October 18, 2011

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